New York Horse & Carriage Ass'n v. City of New York, Dept. of Consumer Affairs

• Decision Date: 17 January 1989
• Citation: 144 Misc.2d 883,545 N.Y.S.2d 439
• Parties: NEW YORK HORSE & CARRIAGE ASSOCIATION, William Alleman, Gloria McGill, Bicentenial Stables, Inc., Cornelius P. Byrne, James Campbell, Chateau Stables, Inc., Nick Cirnigliano a/k/a Nicolo Cirnigliano, Colombo Stables, Inc., Patrick Gavin, Eugene Keating, Con Malone, Jean Malone, Patrick Malone, Arthur McGill, Joy Rabinowitz, Irene Rosenberg, Salvatore Spina, Sebastian Spina, Shamrock Stables, Inc., Westside Livery Stables Inc., The aforesaid making up a class representing all the horse drawn cab drivers and owners licensed and registered with the City of New York, Department of Consumer Affairs, Plaintiffs, v. The CITY OF NEW YORK, DEPARTMENT OF CONSUMER AFFAIRS, Defendant.
• Court: New York Supreme Court

Page 439

545 N.Y.S.2d 439

144 Misc.2d 883

NEW YORK HORSE & CARRIAGE ASSOCIATION, William Alleman,

Gloria McGill, Bicentenial Stables, Inc., Cornelius P.

Byrne, James Campbell, Chateau Stables, Inc., Nick

Cirnigliano a/k/a Nicolo Cirnigliano, Colombo Stables, Inc.,

Patrick Gavin, Eugene Keating, Con Malone, Jean Malone,

Patrick Malone, Arthur McGill, Joy Rabinowitz, Irene

Rosenberg, Salvatore Spina, Sebastian Spina, Shamrock

Stables, Inc., Westside Livery Stables Inc., The aforesaid

making up a class representing all the horse drawn cab

drivers and owners licensed and registered with the City of

New York, Department of Consumer Affairs, Plaintiffs, v. The CITY OF NEW YORK, DEPARTMENT OF CONSUMER AFFAIRS, Defendant.

Supreme Court, New York County,

IAS Part 4.

Jan. 17, 1989.

Albert F. Pennisi by Steven D. Chase, for plaintiff.

Peter L. Zimroth, Corp. Counsel by Robin Rosenfeld, Asst. Corp. Counsel, for defendant.

EDWARD J. GREENFIELD, Justice.

In a complex society, no matter how free, man is subjected to a surfeit of rules, regulations, and laws to define the relationships between persons, and the obligations each individual has to society, and to government, its organized form. But since man is not alone, but exists symbiotically with animals which he adopts, employs, exploits, or consumes, the creatures he controls may also be subject to regulation. The beast of the jungle or the field may be free, but the beast of the city is governed by law. "Dogs, then, by reason of their nonhuman condition, are not exempt from the plethora of detailed regulations which afflict mankind as fleas afflict beagles." Schnapp v. Lefkowitz, 101 Misc.2d 1075, 1080. If the condition under which dogs may exist in urban surroundings can be subjected to statutes, regulations, and ordinances, so too can the circumstances under which one may keep pigs (Servodidio v. Bd. of Appeals of Town of Somers, 146 N.Y.S.2d 125), bees (Olmsted v. Rich, 6 N.Y.S. 826) or pigeons (People v. Benincasa, 63 Misc.2d 648, 313 N.Y.S.2d 211).

In this case, the animals affected are horses--not the awesome creatures ridden by the police, the gaily caparisoned participants in the circus parade, or the sleek mounts cantering on the bridle paths, but those patient beasts and their carriages who draw the tourists, the romantics, and those who yearn with nostalgia for another and gentler age. Because both horse and passenger may be subjected to abuse, provisions have been enacted in New York City's Administrative Code authorizing the licensing, inspection and investigation of horse-drawn cabs. NYC Administrative Code, Title 20, Chapter 2, Subchapter 21. Enforcement of the licensing and regulation is vested in the Department of Consumer Affairs (Admin.Code § 20-101 et seq.).

Plaintiffs, the New York Horse & Carriage Association, and various individual owners and drivers of the city's fleet of horse-drawn cabs, have commenced this action to declare (1) that certain provisions of the Administrative Code dealing with licensing are unconstitutional; (2) that the policies and procedures of the Department of Consumer Affairs violate due process; and that (3) decisions of the Department assessing fines and revoking or suspending licenses were arbitrary and capricious. Plaintiffs have moved for summary judgment, and defendant cross-moves for summary judgment dismissing the complaint.

A declaratory judgment action is the "proper vehicle to review the validity of a legislative act ..." (Doe v. Axelrod, 136 A.D.2d 410, 430-31, 527 N.Y.S.2d 385; Kovarsky v. Housing and Development Administration of the City of New York, 31 N.Y.2d 184, 192, 335 N.Y.S.2d 383, 286 N.E.2d 882). Moreover, it is a proper vehicle for invalidating an unconstitutional application of a statutory provision. "The exercise of a power which offends against the Constitution may be attacked at any time.... The [defendant agency] cannot give legality to an unconstitutional or void statute by exercising power under it." (Lutheran Church v. City of New York, 27 A.D.2d 237, 239, 278 N.Y.S.2d 1).

Unconstitutional Vagueness

The Administrative Code § 20-373 makes it unlawful to operate a horse-drawn cab within the city unless a license has first been obtained. All horse-drawn cabs are to be inspected to ensure that they are fit for operation at least once every four months, the rates charged are regulated ( § 20-380), and the commissioner is empowered to promulgate such rules and regulations as are necessary to carry out the provisions of the code. The commissioner is empowered to suspend or revoke any horse-drawn cab license or driver's license for non-compliance with the code or applicable regulations.

One of the principal points of contention of the plaintiffs is that different inspectors come up with varying interpretations of the code provision for display of the license. Hence, they argue, the provision giving rise to so many disparate interpretations must be deemed unconstitutionally vague, since it is not apparently clear to persons of presumably common intelligence. The void-for-vagueness doctrine embodies a "rough idea of fairness" and "the most common standard by which the sufficiency of statute is measured when attacked for vagueness is that it must not be so drawn that men of common intelligence must necessarily guess at which conduct is prohibited." (Quintard Associates, Ltd. v. New York State Liquor Authority, 57 A.D.2d 462, 463, 394 N.Y.S.2d 960, app. dsm'd. 42 N.Y.2d 973, 398 N.Y.S.2d 1035, 367 N.E.2d 878). It is plaintiff's contention that § 20-375 fails the test posed by this standard.

A statute which is so vague that people of common intelligence must necessarily speculate as to its meaning in the absence of some comprehensible standard or guide cannot pass constitutional muster. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605; Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110; Trio Distributor Corp. v. City of Albany, 2 N.Y.2d 690, 163 N.Y.S.2d 585, 143 N.E.2d 329. However, the fact that people may differ in construing a statute or in applying it does not mean it is void for vagueness. If that were so, then every statute on which judges have differed as to meaning or application, or on which appellate courts have divided would be subject to being stricken for vagueness.

The statute is void only if it specifies no guide or standard at all(Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214), but not if there is a comprehensible normative standard capable of interpretation. Statutes, of necessity, must speak in generalities, leaving application as to each specific case to the reasonableness and discretion of executive, administrative, and judicial officers. "[I]t is not necessary that the Legislature supply administrative officials with rigid formulas in fields where flexibility in the adaptation of the legislative policy to infinitely variable conditions constitute the very essence of the programs. Rather, the standards prescribed by the Legislature are to be read in light of the conditions in which they are to be applied." (Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 31, 416 N.Y.S.2d 565, 389 N.E.2d 1086).

If we can deal with broad and flexible statutory terms like "reasonableness", "due process", or "unconscionable", which are designed to permit a considerable degree of judgment and discretion to fit the circumstances, we are certainly not compelled to grope and stumble in the dark and make arbitrary guesses as to the meaning of such terms as are here presented--"securely affixed" and "conspicuous and indispensable".

Administrative Code § 20-375 provides, in pertinent part that the license plate is to be:

"securely affixed to a conspicuous and indispensable part of such ... horsedrawn cab, on which shall be clearly set forth the license number of such ... horse-drawn cab."

The word "conspicuous" is a term found in many statutory requirements, most notably in statutes specifying that a notice or document be posted in a conspicuous place. Statutes using the term "conspicuous" are not lightly to be stricken down for vagueness. A quick search reveals that the requirement that something be conspicuous is used in 236 New York statutes, covering everything from the Agriculture & Markets Law to the Uniform Commercial Code. It is one of those words about which it can be said, "Everyone knows it when they see it."

The dictionary definition of the word "conspicuous" is "easy to notice; obvious." Its plain meaning when used in a statute is that the required notice or document be displayed openly, notoriously and available for all to see, and not hidden or concealed. Licenses must not only be obtained, but displayed in a conspicuous place, for it is not enough that everything be kosher, but it must appear to be so as well. People v. Johnson Kosher Meat Products, Inc., 42 Misc.2d 534, 248 N.Y.S.2d 429.

Horse-drawn cabs are not the only enterprises singled out; licenses must be obtained and conspicuously displayed by taxi drivers, barbers and hairdressers, by bars and by plumbers, by check-cashers, pharmacies, employment agencies and upholsterers, by billiard parlors and by funeral parlors, and even in the stables of certified stallions in the public service. (Agri. & Mkts. Law, § 103). The CPLR uses term in connection with the service of papers (CPLR 2103[b][3], and even the Great Writ of habeas corpus can be served by being "affixed" in a "conspicuous place".

When the word "indispensable" is added to the term "conspicuous", it adds to, rather than detracts from the meaning. It clearly denotes that there must be attachment to some visible and necessary component which cannot be removed or set aside at whim, but is an inherent and integral part of the whole. The Department has agreed that a license posted on the side or back panels of the carriage meets the requirements of a "conspicuous" and "indispensabl...